Hiring across a border: the seven questions that decide the contract

Hiring across a border: the seven questions that decide the contract

Most software and service buying is now cross-border by default, and our own catalogue is a fair picture of why. We hold listings in 91 countries and rank 29 of them with a hundred or more companies each. In the largest category we cover, IT service providers, the three deepest markets are the United States with 2,999 listings, the United Kingdom with 1,668 and India — and a buyer who opens any one of those rankings is one click away from the other two.

The distance is not usually what goes wrong. What goes wrong is that a set of assumptions that hold quietly inside one jurisdiction — about who you are contracting with, which court hears a dispute, who owns what you paid for, where your data ends up — stop holding the moment a supplier is somewhere else, and nobody notices until they need one of them.

These are the seven questions that decide it. They are not legal advice, and none of them requires a lawyer to ask; they require a lawyer only when the answers are bad.

Which entity signs, and whose courts hear it

The company you met may not be the company on the invoice. Groups often sell through a local entity and deliver through another one in a different country, and the contract may name a third. That is not necessarily improper — it is frequently how tax and employment law force a business to be structured — but you need to know which legal person owes you the work.

Ask for the full registered name, the registration number and the country of registration of the entity that will sign. Check it on that country's register. Then read the governing law and jurisdiction clause, which is usually the last thing in a contract and the first thing that matters when something fails. A clause naming a jurisdiction you would never realistically litigate in is functionally a clause saying you will not litigate.

Two practical follow-ups. Ask whether the signing entity is the one that employs the people doing the work, and if not, what the arrangement is between them. And check whether the contract nominates arbitration — which can be faster and quieter than a court, and can also be expensive enough to be a deterrent by design.

Where your data will actually live

"Where is the data hosted?" gets you a region name. It is not the question. The question is: which countries will your data be stored in, transit through, and be accessible from, including by the supplier's own staff and their subcontractors?

A European or UK buyer has a transfer regime to satisfy and needs the mechanism named — an adequacy decision, standard contractual clauses, or whatever the current instrument is — plus a list of sub-processors and notice before that list changes. A buyer in a regulated sector has more to satisfy than that. Everyone else still has customers whose data this is.

Ask specifically about support access: many otherwise-compliant arrangements are undone by an engineer in a third country being able to open a session on a production database at two in the morning. That is a legitimate way to run support and it belongs in the answer.

Who owns the work, under whose law

Intellectual property assignment is the clause most often copied from a template written for a different country. Whether the words actually transfer ownership depends on the law that governs the contract and, for some categories, on the law where the creator sits. Moral rights, work-for-hire doctrines and the treatment of contractor-produced material differ enough that a clause which works perfectly in one jurisdiction can fail in another.

Ask three things. Does the assignment cover work by subcontractors and individual contractors, not just employees? Does it transfer on creation, or on payment — and if on payment, what happens to work in progress if the relationship ends mid- invoice? And what is carved out as the supplier's pre-existing or reusable material, which is normal and fine, but which you need licensed to you in terms broad enough to keep using the thing you paid for.

For anything involving models or datasets, ask explicitly whether your inputs or outputs may be used to train anything. The answer is increasingly "yes, unless you opt out", and the opt-out is often a setting rather than a clause. We watched a developer platform publish exactly that trade in plain terms this month — far more usage in exchange for an opt-in that sends prompts, code, project files, configuration and edit histories to be used as training data, with some jurisdictions excluded — and the reason it is worth praising is that most of its competitors leave the same arrangement in a sub-clause. Ask where your supplier's equivalent sits, and whether their subcontractors are bound by the same answer.

A related question that is easy to forget: if the supplier builds on top of open-source components, ask for the licence inventory. It is routine work, tools produce it automatically, and the refusal to produce one tells you the inventory has never been looked at. A copyleft licence deep in a dependency tree is not a crisis, but it is a decision, and it should be your decision rather than a discovery.

The hours you will actually share

Time-zone overlap is usually sold as a number of hours and experienced as a number of days. Four hours of overlap sounds workable until a question asked at the end of your day is answered at the end of theirs, and a two-step clarification takes three calendar days.

Ask what the working pattern really is: the hours the assigned people keep, who is on call and when, what the escalation path is outside those hours, and what the published holiday calendar looks like — national holidays differ, and a delivery plan that ignores two weeks of them is a plan with two weeks missing.

Then agree, in writing, a response expectation for the two things that actually hurt: a production incident, and a decision that blocks work. Everything else can wait a day.

What the money really costs

The rate is not the cost. Ask which currency you are invoiced in and who carries the movement if it shifts — a rate fixed in a currency other than yours is a rate that changes every month. Ask how payments are made and what the transfer costs at both ends, because international transfer and conversion fees on a long engagement add up to real money that appears nowhere in the proposal.

Ask about withholding tax and reverse-charge treatment. In several common arrangements one side is obliged to withhold a percentage and remit it locally, and if nobody planned for it, the supplier receives less than they expected and raises it as a dispute at the worst possible moment.

Finally, ask what triggers a price change: indexation, an annual uplift, a change in the number of assigned people, or a scope boundary that is defined loosely enough to be crossed by accident.

There is one more cost that never appears in a proposal and is worth pricing yourself: the time your own people will spend managing the relationship across a distance. On a well-run engagement it is small. On a badly specified one it becomes somebody's second job, and it is almost always somebody senior. If two suppliers are close on price and one of them needs half a day a week of your architect's attention, they are not close on price.

References from your own market, not theirs

Every supplier can produce a happy client. What you want is a client who bought from the same distance you are buying from — a reference in your country, ideally in your sector, who managed the same time zone, the same currency and the same contract structure.

Ask them the questions that are hard to answer diplomatically: what was worse than expected, what did you have to do yourself that you assumed was included, how long did the first serious problem take to resolve, and would you sign again on the same terms. The last one, answered slowly, tells you most of it.

If a supplier cannot produce a single reference in your market, that is not disqualifying — everybody has a first client in a new country — but it should change what you agree to in the first engagement. Make it small, make it finishable, and make the second one conditional on the first.

How it ends

Write the ending at the beginning, when everyone is agreeable. Notice period on both sides. What has to be handed over, in what format, and by when: source code, credentials, documentation, data exports, domain and account ownership, the contents of any system the supplier hosts on your behalf. Who pays for the handover — it is work, and if it is unpaid it is also unenthusiastic.

Two cross-border specifics. First, if people were assigned to you effectively full-time, understand whether local employment law gives them any claim or notice entitlement connected to your work, and whose problem that is. Second, if the supplier holds your data, agree the deletion terms and the evidence of deletion — a certificate, a log, something — because "we have deleted it" is not a fact you can audit after the relationship has ended badly.

When to ask each of these

All seven in the first call would be an interrogation, and you would learn less than you think: the answers that matter are the ones a supplier has to go and check, and nobody checks anything for a prospect who is clearly shopping.

Ask the entity question and the data question in the first conversation. Both are factual, both take a supplier thirty seconds, and both are early warnings — a firm that is evasive about which company signs is telling you something before you have spent any time. Keep the references question for the first call too, but ask for the shape rather than the names: "do you have clients in our country, in our sector, at our size?" The names can wait until you are serious.

Ask the intellectual property, currency and exit questions once you have a proposal and before you have a contract. They are contract questions, they will be answered by someone other than the person selling to you, and they take time to come back. Asking them at proposal stage rather than at signature is the difference between a two-day redline and a four-week one.

Ask the working-hours question last, with the people who would actually be assigned rather than with the account manager, because it is the one question whose honest answer is usually known only by the team. If you can, ask it on a call scheduled deliberately at the awkward end of the overlap, and notice who turns up.

What to do with the seven answers

Put them in a table, one column per supplier, and fill it in before you take the second call. The value is not in any single answer; it is that three suppliers answering the same seven questions produce differences that no sales conversation would ever surface.

Then notice what is missing. A supplier who answers five of seven crisply and goes quiet on data location and IP assignment has told you where to spend your legal budget. That is worth more than a proposal.

Our country rankings carry the short version of this list at the top of every page, so it is in front of you while you are still choosing who to call. The full printable version, with the evidence to ask for against each item, sits in our due diligence checklists. Both are free, neither requires an account, and you are welcome to paste them into your own procurement documents without crediting us.